England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/10/2010

Sir Nicholas Wall P

1. In this case, a District Judge in the County Court is in the midst of hearing care proceedings relating to a young woman, A, who was born on 23 October 1993, and who is thus rising 17. Pursuant to section 31(3) of the Children Act 1989 "no care order or supervision order may be made with respect to a child who has reached the age of 17……". It is therefore imperative that the care proceedings relating to A are completed before she is 17, and they have been carefully time-tabled to ensure that this is so.
2. What has brought the matter to this court is a discrete issue of disclosure, which the District Judge has transferred to the High Court for resolution. In the event, after I had heard oral evidence from the relevant witness, the bar was unanimous that disclosure should be made. That, accordingly, was the order which I made on 5 October 2010, with a proviso that there should be no onward disclosure by the parties beyond themselves, but with disclosure to the police being deferred to be dealt with by the District Judge hearing the care proceedings. As the point is nonetheless an important one, I reserved my reasons, which I now give.
3. I need to make it plain at the outset of this judgment; (a) that I am imposing reporting restrictions for the purposes of this hearing (this judgment is being written anonymously); and (b) that nothing in it is designed in any way to influence the outcome of the decision which the District Judge will make prior to 23 October 2010 in the County Court. Miss Kate Hudson, for the local authority in the case, made it clear that she would be pursuing the application in relation to A who, on the local authority's case, is at risk of "honour" based violence if a care order is not made. A, it appears, currently wishes to return to live with her parents. Whether or not there should be a care order, and whether or not A returns to live with her parents are not issues before me, and this judgment will deal exclusively with the question of disclosure.

The facts

4. The matter arises in the following way. A was born of parents who originate from Pakistan. She has, however, spent her entire life in the United Kingdom, and is a British subject, as are her parents. She is the fourth of her parents' five children. The local authority commenced care proceedings on 23 February 2010. Prior to that date, A, at her own request, had been accommodated since 3 December 2009.
5. The reason for the care proceedings has its origins in the fact that A has formed a relationship with a young man, whom I will call AF. A's parents disapprove of AF, who, like A was brought up in England, but whose parents originate from Bangladesh. There has also been a series of incidents which concern the local authority, and which I propose to summarise.
6. In September 2009, A was found close to her home by a member of the public. Her hands were tied together, and she had a piece of broken glass with her. She was in a state of extreme distress. The member of the public concerned made a '999' call, as a result of which the police attended the scene. A was reluctant to give any information to the police, and told them that she had tied her hands herself. She did, however, tell them that there was domestic violence at home with her father being abusive towards her mother. In oral evidence to the district judge the officer concerned said that A had said words to the effect that her parents were always getting at each other.
7. At the end of November 2009, A went missing for three days, having it is said, been initially locked in the house by her mother. She later said that she spent the three days with AF.
8. On 3 December 2009 it is alleged that AF was "kidnapped" by two of A's brothers, taken to an address and then threatened by the brothers over his relationship with A. The two brothers were arrested, and there are pending criminal proceedings against them. These were to be heard prior to the determination of the care proceedings, but they have now been put back to December 2010. It is not suggested that A or her parents had any direct connection with this incident.
9. On 4 December 2009, A was placed in foster care, where she remains to date. Her attitude to her placement has appeared ambivalent. At times she has expressed fears of going home: at others she has expressed a wish to do so. Latterly her wish to return home has become more fixed, and she has been having contact with members of her family (not all of it known to, or agreed by the local authority).

The relevant court orders

10. On 24 February 2010 an order under the Forced Marriage (Civil Protection) Act 2007 was made, and (inter alia) A was made the subject of an interim care order until 13 April 2010. A case management conference was listed for that day The judge directed the local authority to file its interim care plan and a risk assessment in relation to A by 31 March 2010.
11. I do not have a copy of the order made on 13 April 2010.
12. On 10 May 2010. the interim care order in relation to A was renewed until 21 May and on 26 May, at the conclusion of a five day hearing, the judge delivered a judgment which resulted in the interim care order being renewed until 23 June 2010. (It has since been renewed administratively).Amongst other directions, the judge directed a case management conference on 17 August 2010, and also ordered an honour related abuse assessment from an expert to be filed by 14 July 2010. The judge's judgment has been transcribed, and is in my papers.
13. By this stage A and the guardian had parted company, and A was represented by a solicitor whom she was instructing direct. On 20 August, however, the expert's report was not ready. The judge retained the date of 20 September for the final hearing, and gave further directions designed to ensure that it was effective
14. By 29 September 2010, the expert had written a second report which contains information which had influenced the expert, but which had not been disclosed. Unfortunately, the point could not be disposed of on 29 September and thus question of the second report's disclosure was adjourned to 5 October 2010, when I heard it. It was also directed on 29 September that the expert's second report should be disclosed to the parties' legal advisers, the parties having given irrevocable instructions not to impart the information contained within it to their respective clients.

The evidence of A's parents

15. A's parents assert that they are not strict Muslims and have no issues about family members marrying people with a different religion. They strongly deny putting any pressure on A, and they assert that at no point have they suggested that she should go to Pakistan to marry. They deny assaulting her and say that they would never do so.

The expert's first report

16. This is dated 25 August 2010, and has been disclosed to the parties. It is an extremely long document, running to some 50 pages. The author read all the documents and had interviews with all the participants in the proceedings, including A and AF. The interviews are reported in considerable detail. The expert concludes that A is not at immediate risk of forced marriage, but recommends that the FMPO remains in place. The expert also expresses the view that a legal framework of protection should remain in place for both A and AF until the criminal proceedings are concluded "and a comprehensive follow up review of (A's) circumstances is undertaken".

The oral evidence of the expert to the district judge and the expert's second report

17. During the course of the expert's oral evidence to the district judge it transpired: (1) that the expert had received information from A and others which had not been included in the first report; (b) that this information had influenced the expert's conclusions; and (c) that neither this information, nor its source, had been disclosed. It also transpired that the expert had given assurances of confidentiality to A.
18. In the second report, which is dated 27 September 2010, the expert says that advice was sought by the expert on the "confidentiality" point from the local authority. There is a stark conflict of evidence on this point, which I have not found it necessary to resolve. I will, however, discuss the question of confidentiality later in this judgment.
19. In essence, the additional, undisclosed evidence can be grouped under three main headings. The first comprises information from A. This is; (a) that her mother had talked in the hallway of the family home with a man. A could not see what they were doing but A could hear them "giggling" and she knew that her mother "was up to no good"; (b) that A had also seen her mother talking to this man; (c) that A had witnessed regular domestic violence in the family home; there had been arguments between her mother and her father and the latter had accused the former of having an affair; (d) that on occasions her father had gone out and got drunk, and that her mother sometimes refused to allow her father back into the house. This, she said, made things worse; and (e) that she gives an explanation for her own behaviour by "pushing the boundaries" to test her mother's reaction.
20. A also told the expert that the family had moved home because her father wished to move the family away from a number of bad influences: this included putting distance between the man in question and her mother. A elaborated on this theme to the expert who recorded that she had told the police about the domestic violence and AF.
21. The second heading comprises what the expert was told by AF's family. Apart from the pressure on AF to withdraw his statement, they told the expert that AF; (a) had stolen his sister's passport and arranged to have it sold; (b) that AF had stolen up to £20,000 worth of gold from three members of his family, which he had then sold for cash; (c) that the family was seriously contemplating sending him to Bangladesh; (d) that he had a serious anger problem and would break things in the house; (e) that he owed all his friends money; and (f) that he had been involved in shoplifting and an arson attack at the local Mosque.
22. The third heading was information which the expert had been given by C, a young woman who is now adult, but who was in care, and lives in the same foster placement as A. A had clearly spoken to C, and C reported to the expert what A had said. As Miss Hudson made it clear that the local authority was not minded to rely on what C had said. I do not propose to set it out.

The expert's oral evidence to me

23. The expert told me that the significance of A's mother's alleged misconduct was that it had an impact both in the family context and in the broader community context. The fact that it was being discussed in the community would put the family in a very difficult position, The family was going through a very difficult time. A, the expert thought, felt responsible, and the expert worried for A's safety. However, the expert found it difficult to say how dangerous disclosure would be. People had been killed for less.
24. The expert recognised that the information about AF might come out in the criminal proceedings. If it did, the expert would worry for A. The expert was unable to say what A's parents' reaction would be - even though they had been made aware that AF was not of good character.
25. In cross-examination, the expert accepted that A was immature for her age and could be besotted. The expert did not know how A's parents would react to knowing the information about AF. The expert acknowledged the argument that A should know. AF needed to be honest with A. The expert accepted that A might need "a healthy dose of reality" A, who had received gifts from AF, certainly needed to know whether or nor not she was in receipt of stolen goods, but she needed to know in a controlled way. The expert accepted that these were confidential proceedings within the family court, but left the decision to me. All the expert could do was to share the information.
26. The expert would like to think her parents would react by advising A. The expert accepted that an assurance of confidentiality had been given. The information had to be disclosed, but in a controlled way. The expert accepted that domestic violence had been a feature before AF came on the scene. The expert's view was that what A was trying to do was to bring the family back together. She was attached to her family, but feared the family's reaction both because much of the information was coming from her and because it was in the public domain. The information needed to be well managed and controlled.

The argument

27. With her customary efficiency and good sense, Miss Hudson had identified the relevant case law, and, having heard the evidence of the expert, had come to the conclusion that the expert's second report should be disclosed. That was also the submission of the other parties. Miss Hudson accepted that none of the information was of direct relevance to the threshold findings sought by the local authority, and accepted that, on its face, it appeared that A's father had been aware of the assertion made about her mother, and that his response had been controlled, and had not affected A's welfare. So far as the disclosures by AF's family were concerned, they appeared both to justify A's parents' concerned about him. They were, in addition, matters which A needed to know about (if they were true) and they might well in any event, come out in the criminal proceedings. Finally, as Miss Hudson was not minded to rely on C, there was no reason why what C had said to the expert should not be disclosed.

27. These submissions were echoed by the other parties with varying degrees of force.

Discussion (1): the law

28. Two points arise. The first, of course, is that disclosure is the rule, not the exception: indeed, for disclosure not to take place, the circumstances have to be exceptional. This is so well-established a proposition that it barely needs authority. It is, however, succinctly stated by Lord Mustill in D (Minors) (Adoption Reports: Confidentiality [1996] AC 593 at 603H to 604A: -

"My Lords, it is a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion. This principle is lame if the party does not know the substance of what is said against him (or her), for what he does not know he cannot answer….."

29. As early as Official Solicitor v K [1965] AC 201, however, the court had concluded that in cases involving children it had a discretion not to order disclosure in certain circumstances. Miss Hudson cited to me a substantial extract from the judgment of Thorpe LJ in Re M (Disclosure) [1998] 2 FLR 1028, which I found helpful, but which I need not set out. In addition, the latest thinking on the subject, albeit in a different context, seems to me to be found in the speech of Lord Bingham of Cornhill in R v H. R v C [2004] UKHL 3. [2004] 1 All ER 1269 and in the speech of Baroness Hale of Richmond in Secretary of State for the Home Department v MB and AF [2007] UKHL 46. [2008] 1 AC 40. – see in particular paragraphs 57 to 60.
30. Whilst I am in no doubt that the power exists to withhold disclosure in exceptional circumstances (such as the likelihood of a breach of a party's ECHR Article 2 or 3 rights if information is disclosed) I am satisfied, for the reasons set out in paragraph 27 above, that in the instant case the normal rule applies, and that A's parents' ECHR Article 6 right to have a fair hearing outweighs any risk to A that disclosure of the information is likely to cause her harm. I also bear in mind that disclosure will facilitate the parents' cross-examination of the expert and will assist the district judge in implementing the overriding objective.
31. That said, I am equally in no doubt that there will be "honour" based violence cases in which the balance will fall the other way.

Discussion: (2) Confidentiality

32. The second point which arises is the fact that the expert promised confidentiality to A in particular. Once again, the basic rule is clear. Experts in Children Act cases cannot receive information "in confidence" from anybody. All relevant information must, normally, be shared with the other parties and the court. It is for this reason that the expert's report will invariably be disclosed whatever it says. The duty of the expert is to be objective and wholly free from bias in favour of one party or the other. The watchwords should be openness and sound preparation, and experts must be prepared for everything they do and say to be the subject of challenge.
33. In my judgment, "confidentiality" in this context means that the information contained in the papers filed with the court for the purposes of the proceedings is confidential to the court. It is for this reason that, with very few exceptions, the court papers cannot be disclosed to people who are not parties to the proceedings without the court's permission; and publication outside the proceedings of information relating to the proceedings is in most cases a contempt of court unless permission for it has first been given by the court.
34. As already stated, however, I can quite see that in some cases of either forced marriage or "honour" based violence, disclosure of information given by a witness to an expert might well put the witness, or the source of the information at risk.
35. In these circumstances, it seems to me that there is much to be said for the approach adopted by McFarlane J (albeit in different circumstances) in paragraph 112(i) of his judgment in Re T (Wardship: Review of Police Protection Decision) (No 2) [2008] EWHC 196 (Fam) [2010] 1 FLR 1026, namely that full disclosure should be made to the court of the relevant material, and that the court should then decide whether the ECHR Article 6 rights of the parties require disclosure: - see, for example, the approach of Munby J (as he then was) in Re B (Disclosure to other parties) [2001] 2 FLR 1017.
36. In the instant case, the issue has been facilitated by the willingness of the parties' advocates to receive the information on the basis that it would not be passed on to their clients. I have not sought argument on that point, and express no view about it. I am, however, satisfied that the relevant information was properly brought to the attention of the court. That having been done, it is clear that the case does not approach the high threshold which is required for non-disclosure, and that the expert's second report should be disclosed in full to all the parties.